The National Labor Relations Board recently affirmed an Administrative Law Judge's decision regarding an 8(a)(1) violation by Chipotle when it maintained and enforced its "Social Media Code of Conduct." Chipotle Services LLC d/b/a Chipotle Mexican Grill, 04-CA-147314 (2016). The Code prohibits employees from posting incomplete, confidential, or inaccurate information and from making disparaging, false, or misleading statements. The Board agreed with the judge’s conclusion that the Respondent violated Sec. 8(a)(1) by discharging the employee for engaging in protected, concerted activity by circulating a petition regarding the employer's failure to abide by its own break policy and in explaining employees’ concerns about this issue during a meeting with Manager Jennifer Cruz, and that Cruz unlawfully discharged the employee when he refused her directive to stop circulating the petition.

Similarly, the Board agreed with the ALJ's decision with respect to the employer’s social media code of conduct. While the manager had used an outdated social media code of conduct to discipline the employee, the Judge found that her decision was to be based on this policy given that the policy was used for the employee’s termination. The Judge determined that the prohibitions against spreading incomplete, confidential, or inaccurate information and those against making disparaging, false, or misleading statements violate Section 8(a)(1). However, she found that the prohibitions against harassing or discriminatory statements are lawful. The employer also violated the NLRA when it requested that the employee remove his tweets. The tweets concerned wages and working conditions—employees’ pay rates and being required to work on snow days. Wages and working conditions are matters protected by the Act. The issues raised in the employee’s tweets were not purely individual concerns.